Regulatory Reform

Regulatory Reform

The authors of the Constitution intended Congress to be the first among the federal government’s three co-equal branches. Endowed with the power to legislate, tax, and spend - while simultaneously being held to tighter public accountability - Congress was meant to be the driving force behind federal policy making.

Today, the vast majority of federal “laws”—upwards of 95 percent—are not passed by the House and Senate and signed by the president as the Constitution directs; they are imposed unilaterally by unelected Executive Branch bureaucrats.

This upending of our constitutional order has led not only to bad policy, but to deep public distrust in our governing institutions.

To fix Washington, we must first fix Congress, and that can only happen if Congress reasserts the powers it was given under the Constitution.

Executive agencies do have a role to play in the federal government. Congress can and should utilize their expertise to help set the rules everyone competes under. But that does not mean executive agencies should be functionally creating new laws by abusing their delegated authority. By requiring Congress to approve any new rule with a major impact on the economy ($100 million), the Regulations from the Executive in Need of Scrutiny Act (REINS Act) would give the American people a greater voice in reducing the undue burden of excessive regulations and help hold executive agencies accountable.

Washington should not be using taxpayer money to pick winners and losers in the energy industry. Consumer-driven, free-market competition provides a much better way to ensure Americans have access to reliable, affordable energy. The Energy Freedom and Economic Prosperity Act would level the playing field for all energy producers. As a result, these producers will have to compete for consumer dollars rather than political favors by phasing out all technology specific energy subsidies, by reducing corporate dependence on Washington handouts, and by offseting any net tax increase with a reduction in the corporate tax rate.

It is always dangerous when Congress gives away any of its legislative power to the executive branch. But that danger became all the more potent in 1984 when the Supreme Court held in Chevron v. Natural Resources Defense Council that federal courts must defer to federal regulators interpretation of a law so long as the regulator provided a “permissible construction of the statute.” Whatever speculative value this “Chevron deference” standard may have had in theory, in practice it has become a license for federal regulators to rewrite statutes wholesale.

The Separation of Powers Restoration Act would mitigate this harm and restore some balance to the separation of powers by requiring courts to review challenges of federal agency regulations afresh; no longer would litigants come to the courtroom with scales already tipped heavily in the executive branch’s favor.